• NLRB Union Representation Election Rule Struck Down for Lack of Quorum by Lee Beck of Federal Regulations Advisor
• U.S. District Court Invalidates "Quickie" Election Rule by Tyler Hendry of New York Labor & Employment Law Report
• NLRB Election Rules Invalid — For Now by Bryan M. Okeefe of The Labor & Employment Report
• Federal Court Invalidates Ambush Election Rules, Dealing NLRB Yet Another Setback by Mark Theodore of Labor Relations Update
• That was fast: Court voids NLRB "quickie" union-election rulesby Eric B. Meyer of The Employer Handbook
• Technicality Snarls Fairer NLRB Union Election Rules by Donna Jablonski of the AFL-CIO Now

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

According to the Board's annual report, there were 2,634 representation (RD, RC) petitions filed in FY 2011.

Approximately 150 petitions filed in 11 business days under the new regs is approximately 13.6 petitions filed per business day -- or 3,423 over the course of a full year. While this is only a slight increase from the pace of filings immediately prior to the rule's April 30 implementation, it is fairly safe to assume we will see a notable surge in organizing activity when and if the rule is re-issued by a proper quorum of the Board.

It does, however, raise the interesting question of the extent to which elements of the Acting General Counsel's new guidelines -- designed to expedite election processing consistent with the rule -- will survive as an administrative matter on the regional level.

Today, that question has been answered temporarily. The Board just announced it has temporarily suspended the implementation of changes to its representation case procedures. While Board Chairman Mark Gaston Pearce reiterated his support for the rule changes, pending review of legal options, the Board will continue to process representation petitions under the previous, long-standing guidelines.

The Board announcement also clarified:

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

Location:National Labor Relations Board Announces Suspension of 'Quickie' Election Rule Invalidated by Court

Given their inability to persuade the National Labor Relations Board not to pass the new "quickie" election rule, as well as their inability to convince Member Hayes to step down to prevent its passage, perhaps this is what employers and opponents to the rule are thinking this morning after yesterday's decision by District Court Judge James Boasberg of the District Court for the District of Columbia, in which Judge Boasberg invalidated the NLRB's new "quickie" election rule. Specifically, Judge Boasberg found that the NLRB failed to have a quorum to pass the new election rule. While the decision gives employers at least temporary relief from the new rule, Judge Boasberg's ruling begs the question:

How could the NLRB not have a quorum under New Process Steel when the Board had three members at the time?

As Judge Boasberg's decision lays out, the devil's in the details.

It started on June 22, 2011, when the Board formally proposed to amend its procedures for resolving disputes about union representation in a Notice of Proposed Rulemaking (NPRM), which was issued by a 3-1 vote of the four members holding office at the time. The NLRB received 65,000 written comments in response, and the Board held two full days of hearing on the proposed rule. Again, all four members at the time participated in the hearing. So far so good.

Subsequently, then-Chairman Liebman's term expired leaving three members, current Chairman Pearce, Member Becker, and Member Hayes. In preparation for issuing of the final rule, the three remaining members took steps for issuing the new election rule.

• November 30, 2011: the remaining three members considered a resolution to "[p]repare a final rule to be published in the Federal Register containing" eight of the amendments proposed in the NPRM and to "[c]ontinue to deliberate on the remainder" of the proposed amendments. The resolution passed by a vote of 2-1, with Member Hayes dissenting.
• December 9: Consistent with that resolution, the final rule was prepared and a draft was circulated by Chairman Pearce via email.
• December 12: A second draft was circulated via email.
• December 13: A third draft was circulated in the Board's internal Judicial Case Management System (JCMS).

At this juncture, an explanation of the NLRB's JCMS system is warranted to understand the Board's later misstep:

JCMS is the ordinary procedure for circulating and revising draft decisions, rules, and other documents, and for voting - generally either "approved" or "noted" with an attached dissent or concurrence. The case or rule is moved to issuance when votes are recorded for all Board Members as to the final versions of all circulated documents.

Moreover, and critical to Judge Boasberg's ruling:

In situations where a particular Board Member has not voted and immediate action is desired, the Executive Secretary or Solicitor may convey, by phone or email, a request to act."

It should come as no surprise, then, that it was the Board's failure to follow this custom that ultimately doomed the final rule, as the Board continued to revise the final rule and then rushed the vote and publication for the final version just hours after it was circulated:

• December 14: Chairman distributed by email a draft Order, which directed the Solicitor to publish the final rule in the Federal Register "immediately upon approval of a final rule by a majority of the Board." The Order provided that any concurring or dissenting statements would be published in the Federal Register after publication of the final rule itself, and it also stated that the Order would "constitute the final action of the Board in this matter." All three members voted on this procedural Order by email on December 14 or 15, again a 2-1 vote with Member Hayes dissenting.
• December 15: A fourth draft of the rule was circulated via JCMS. Later that day, an email was sent asking whether Member Hayes wished to include a dissenting statement in the final rule. Member Hayes conveyed that he would not attach any statement to the Final Rule so long as, consistent with the Board's Order, he would be able to add a dissent later on.
• On December 16, the final version of the rule was circulated in JCMS. Both Chairman Pearce and Member Becker voted to approve the rule. As a result, the Solicitor forwarded the rule for publication in the Federal Register that same day.

However, as Judge Boasberg found, Member Hayes never participated in the vote on the rule in its final form:

Hayes did not vote. Nor was he "asked by email or phone to record a final vote in JCMS before or after the Final Rule was modified, approved by Chairman Pearce and Member Becker, and forwarded by the Solicitor for publication on December 16. Hayes has averred that "after he voted against the procedural Order on December 15 and indicated that he would not attach a personal statement to the Final Rule, he gave no thought to whether further action was required on him."

In arguing to the court that there was a quorum, the NLRB asserted that Member Hayes should be considered part of the quorum despite his not having voted on the final rule because Member Hayes:

1. participated in two earlier decisions relating to the final rule's publication; and
2. was "present" for the December 16th vote to adopt the rule.

Judge Boasberg rejected both arguments:

the December 16th decision to adopt the final rule, not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. And although Hayes need not have voted in order to be counted toward the quorum, he may not be counted merely because he was a member of the Board at the time the rule was adopted. More was required.

Specifically, Judge Boasberg found that Member Hayes "simply did not show up - in any literal or even metaphorical sense," and further concluded that Member Hayes did not exercise a "minority veto" by failing to act as the facts established that the entire Board had a "misimpression" as to whether Member Hayes had "effectively indicated his opposition" to the rule.

Accordingly, the irony of the new election rule's defect is that in the Board's apparent zeal to avoid any quorum issues under New Process Steel with Member Becker's term expiring at the end of 2011, the Board created a new New Process Steel procedural defect.

While employers are elated with the decision, it will surely be short lived. We expect that the Board will move efficiently to pass a new version of the election rule, and it will not make the same mistake twice. However, as we opined on this blog yesterday, that sets the stage for the battle over the recess appointments of Members Block, Flynn, and Griffin.

A rule change by the National Labor Relations Board that allows for faster votes on union elections was thrown out by a federal judge who said the agency lacked a quorum when it approved the measure.

U.S. District Judge James Boasberg said only two of the three members of the board required to constitute a quorum actually voted on the rule. He said representation elections will have to continue under previously established procedures unless the board votes with a proper quorum. The rule went into effect on April 30.

[Our take on Judge Boasberg's order]

"USW Says Marathon Petroleum's Actions Impinge on Safety and are Unlawful" -- MarketWatch.com

United Steelworkers (USW) Local 8-719 says that the terms and conditions of employment Marathon Petroleum unilaterally implemented do not promote safe staffing levels to safeguard the refinery's employees and the surrounding community.

The local's contract with Marathon expired on January 31, 2012. The company accepted the National Oil Bargaining Pattern Agreement the USW negotiated with the industry, but disputes arose over local issues involving work schedules, vacation allotments and re-alignments of departments that result in job duty and schedule changes.

"Dick Meister: Union rights are civil rights" -- San Francisco Bay Guardian

The right of U.S. workers to organize and bargain collectively with their employers unhindered by employer or government interference has been a legal right since the 1930s. Yet there are workers who are unaware of that, and employers who aim to keep them unaware, meanwhile doing their utmost to keep them from exercising what is a basic civil right.

Many employers often claim working people are in any case not much interested in unionization, noting that less than 15 percent of workers currently belong to unions.

But as anyone who has looked beneath the employer claims has discovered, it's the illegal opposition of employers and the failure of government regulatory agencies to curtail the opposition that's the basic cause of the low rate of unionization.

"Union’s pension plan targeted for criminal probe" -- Boston Herald

Federal authorities have launched a criminal investigation into the International Brotherhood of Boilermakers’ pension and benefit plans, McClatchy Newspapers has learned.

The investigation began after federal agencies received anonymous complaints about mismanagement of the plans, according to court filings. The complaints included allegations that family members of some trustees received bonuses from companies that managed investments for the three funds, which total $8.5 billion. A grand jury investigation followed.

The Court today, however, ruled that the final rule was promulgated without a proper quorum of three Board Members, and therefore must be set aside as beyond the Board's authority....for now: 

In so doing, however, the Court emphasizes that its ruling need not necessarily spell the end of the final rule for all time. The Court does not reach – and expresses no opinion on – Plaintiffs’ other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so. In the meantime, though, representation elections will have to continue under the old procedures.

Somewhat interesting to note, the Court states clearly that the Board was denied the authority to act merely by Member Hayes refusal to participate in the rulemaking:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.

This strikes us as an extension of the Supreme Court's New Process Steel decision, 130 S. Ct. 2635, 2638 (2010), cited here by the parties and the Court.  Only Judge Boasberg's decision specifies that the three required Board Members must not only be properly seated, but also participate in the action for it to pass muster.  Observers will recall that at the time of the rulemaking action, there was considerable speculation as to whether Member Hayes might step down from the Board to prevent it from acting.  As it may turn out, he did not have to.

Initial thoughts about "takeaway":

This decision foreshadows the coming showdown over President Obama's January 2012 "recess" appointments.  Judge Boasberg's decision strongly suggests that if there is an interest in a fully functional National Labor Relations Board, there must be a fully seated Board -- or at least a full quorum of three like-minded Members who will participate in actions.

Finally, it is unclear whether the decision truly opens the door to allow an obstinate Member to derail the Board by perpetually ignoring Board overtures to act.  On the facts of this case, the Judge simply found there was no quorum:

Had someone reached out to him to ask for a response, as is the agency’s usual practice where a member has not voted, or had a substantial amount of time passed following the rule’s circulation, moreover, it would have been a closer case. But none of that happened here. In our prior world of in-person meetings, Hayes’s actions are the equivalent of failing to attend, whether because he was unaware of the meeting or for any intentional reason. In any event, his failure to be present or participate means that only two members voted, and the rule was then sent for publication that very day.

For now, the Board's prior rules will remain in place, and parties should expect the current median of 38 days to remain the approximate amount of time between the filing of a petition and an election.  It does, however, raise the interesting question of the extent to which elements of the Acting General Counsel's new guidelines -- designed to expedite election processing consistent with the rule -- will survive as an administrative matter on the regional level. 

Stay tuned...

House Democrats are calling for the National Labor Relations Board’s (NLRB) inspector general to appear before Congress.

In a letter sent Friday to Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, Reps. George Miller (D-Calif.) and Rob Andrews (D-N.J.) said Kline should hold a hearing on recent ethics sandals at the agency and call Dave Berry, the NLRB’s inspector general, before the panel.

The Democrats cited three recent reports by the IG that looked into Republican members of the labor board, Brian Hayes and Terence Flynn.

"Impact on Immigrants Is Focus of NLRB Chief" -- HispanicBusiness.com

U.S. immigration laws often work in extreme tension, with federal workplace regulations, thwarting attempts to seek justice for abused immigrant and refugee workers, the chairman of the National Labor Relations Board told a local audience Thursday.

Mark G. Pearce, a founding partner of the Ceighton, Pearce, Johnsen & Giroux law firm in Buffalo, was the guest speaker at a forum at Vive La Casa, a nonprofit humanitarian group assisting refugees seeking protection in the United States and Canada since its founding in 1984.

"Trump Refusal to Bargain With Union Upheld by U.S. Court" -- Bloomberg

Trump Entertainment Resorts Inc. won reversal of a National Labor Relations Board decision requiring the company to bargain with a union representing card dealers because of improprieties in the union’s election.

The U.S. Court of Appeals in Washington today ordered the board to review Trump’s contention that the union “misled voters to believe the election was a ‘foregone conclusion,’” with a mock card-check proceeding. After the union won the Trump Plaza Hotel election in March 2007, Trump refused to bargain, complaining to the NLRB about the legitimacy of the process.

"American Airlines to explore merger options" -- Reuters

AMR Corp, parent of American Airlines, bowed to pressure on Friday from its unsecured creditors, including its largest labor unions, and said it would explore merger options while it is still in bankruptcy.

AMR, which has been in Chapter 11 since November, had long said it intended to reorganize as a stand-alone carrier, shrugging off interest expressed by rival US Airways Group Inc.

Starbucks baristas were out of line sticking Industrial Workers of the World pins all over their clothing in support of attempts to be part of a labor union, a U.S. appeals court ruled on Thursday.

The court said a Starbucks Corp policy limiting employees to displaying only one pro-union button or pin on their work uniforms was not an unfair labor practice. One employee at a Starbucks location in New York had tried to display eight union pins on her clothing, according to court papers.

The case, a dispute between the National Labor Relations Board and the company, arose out of unionization efforts at several Starbucks coffee shops in Manhattan between 2004 and 2007. None of Starbucks's 7,000 stores in the United States are unionized.

"NLRB Nixes Lunch Break Claim Against Washington Post" -- Law360 ($)

The National Labor Relations Board rejected a bid from the agency's acting general counsel Wednesday to revive a claim that the Washington Post violated labor law by bypassing a union and trying to persuade individual employees directly not to take lunch breaks.

A three-member NLRB panel agreed with an administrative law judge's Nov. 15 finding that the complaint, issued by the acting general counsel and based on charges from a unit of the Communications Workers of America, should be dismissed.

"Union fines worker for working during strike" -- LegalNewsline.com

A Honeywell nuclear assembly worker filed a federal charge against the International Association of Machinist Local Lodge 778 on Friday.

The suit was filed over a $7,361.36 fine assessed for, Daniel Gudde claims, exercising his right to refrain from union membership and continue to do his job during a union boss-instigated strike.

Gudde filed the charge with the National Labor Relations Board regional office in Overland Park, Kansas. Gudde began working at Honeywell in late September believing he had to join the union.

"Raley's, union agree to extend deadline" -- Chicago Tribune

Raley's shoppers in San Joaquin County won't have to worry about a labor strike, at least for the next month, as the grocery chain and its union have agreed to extend the current contract until June 6.

They will continue to negotiate with the help of a federal mediator.

In a joint statement issued Tuesday evening, Raley's Supermarkets and the United Food and Commercial Workers Union, locals 5 and 8, said the two sides had scheduled meetings with the federal mediator Monday, Tuesday and May 18.

Labor unions have long been a potent force in American business and politics. But the last several decades have seen a steep decline in corporate union power as membership ranks have dwindled. Aside from a few industries where unions remain formidable -- including airlines, where US Airways' efforts to merge with American Airlines were given a recent boost by support from American's unions -- the dwindling of labor union power and influence is likely to continue. "They have declined to the point of irrelevance in most workplaces," says Peter Cappelli, Wharton management professor and director of Wharton's Center for Human Resources. And rather than focusing on expansion, unions are simply trying to minimize the ground they are losing every year, he notes. "They are having a hard time hanging onto whatever [contract] arrangements they have."

"Circuit Upholds City Pacts With Construction Unions" -- GlobeSt.com

A Second Circuit panel has ruled that agreements between New York City and a group representing some 50 construction unions do not violate federal labor law, affirming an August 2011 ruling by Southern District Judge Robert Patterson. The disputed project labor agreements affect $6 billion in current and future city projects, according to a statement from the city's Law Department.

The decision from the US Court of Appeals for the Second Circuit affirmed the dismissal of a suit filed last year by the Building Industry Electrical Contractors Association and the United Electrical Contractors Association, two groups representing contractors. It alleged the city's "project labor agreements," or PLAs, with the Building and Construction Trades Council of Greater New York, which represents about 50 unions, ran afoul of the National Labor Relations Act. The agreements set terms for the employment of over 30,000 construction workers on city projects through 2014.

 "Unions' influence questioned after Falk's defeat" -- Wisconsin Rapids Tribune

Kathleen Falk's drubbing in Tuesday's Democratic primary has some political insiders questioning the decisions, and influence, of the state's major public labor unions.

Falk, 60, was the first Democrat to enter the recall election, announcing her candidacy even before the race was official. Major labor unions, including the American Federation of State, County and Municipal Employees and the Wisconsin Education Association Council, quickly endorsed her and then went on to spend nearly $5 million to help her win the nomination.

"Labor, aerospace industry unite against cuts" -- Politico

Republicans and Democrats teamed up last year to push the Budget Control Act through Congress. Now, the aerospace industry and its major labor union are banding together to oppose it.

“Industry and the workers have a lot of things in common, and one of those is preserving U.S. aerospace jobs,” said Lockheed Martin spokesman Joe Stout.

This strange-bedfellows alliance evolving between defense contractors and their unions is part of an effort to fight the hundreds of billions of dollars in across-the-board defense cuts set to begin taking effect next year. The cuts were included in the Budget Control Act as a way to spur Congress to act, and they can be averted only if lawmakers agree to a $1.2 trillion deficit-reduction plan.

en. Tom Harkin (D-Iowa) on Tuesday threatened to hold a congressional hearing after receiving little cooperation from a member of the National Labor Relations Board (NLRB) who is alleged to have broken ethics rules.

Terence Flynn, a Republican NLRB member who was recess-appointed to the labor board in January by President Obama, has been the subject of two recent reports by the agency's inspector general (IG). The IG reports allege that Flynn, when he was an agency chief counsel, broke ethics rules by leaking confidential information to people outside of the NLRB, including Peter Schaumber, a former NLRB member and ex-campaign adviser to presumptive GOP presidential nominee Mitt Romney.

"Mystic Seaport workers try to form union" -- The Day

Mystic Seaport employees, who have faced layoffs in recent years, are trying to form a union.

According to Eric Excell-Bailey, a spokesman for AFT Connecticut, a vote to form the union could occur as the early as the end of this month. If a majority of the 200 Seaport employees support the formation of a union, then a union will be created and begin negotiations with Seaport management.

He said Monday the employees he's spoken to love the Seaport and want it to be successful but feel their voices are not being heard by management when they have ideas for improvement.

"A labor challenge to Republicans in Indiana" -- Chicago Tribune

When voters in Indiana's 64th state House district go to the polls today, their ballots will say that James Amick is a Republican primary candidate. But if they've heard some of Amick's positions on the issues, they might not be so sure.

Indiana Republicans' signature achievement this year was a right-to-work law that unions despise. Amick, a tower crane operator and a member of the International Union of Operating Engineers, opposes right-to-work. Over the last two years, Indiana Republicans also have taken ambitious steps to offer private school vouchers, expand charter schools and allow private operators to take charge of struggling schools. Amick casts himself as a defender of public education and a skeptic about all those moves.

"USW Members and their Allies to Rally at Compass Minerals Shareholder Meeting" -- MarketWatch

United Steelworkers (USW) members will rally at the Compass Minerals shareholder meeting in front of the Doubletree Hotel in Overland Park, Kan., on Wednesday, May 9, 8:15 a.m. to object to the company's violation of the National Labor Relations Act and treatment of its employees.

The USW represents about 100 workers at a salt mine in Cote Blanche, La., which is owned by Compass Minerals's subsidiary, North American Salt. In 2010 North American Salt illegally implemented new employment terms without its workers' approval. After a brief strike the USW filed unfair labor practice charges with the National Labor Relations Board (NLRB). An administrative law judge for the NLRB ruled that North American Salt acted illegally.

The pressure on Flaum Appetizing Corp. had been building for years: More than 120 supermarkets stopped selling its hummus, herring and cheeses; the world's largest kosher dairy company severed ties with it; and the National Labor Relations board rejected its argument that workers shouldn't get hundreds of thousands of dollars in back pay because they were undocumented.

On Monday, the Brooklyn-based business agreed to pay 20 former employees $577,000 in wages and other compensation to settle a 4-year-old labor dispute. The nearly century-old kosher food distributor also agreed to a binding code of conduct protecting workplace rights.

"Ten HCA hospitals unionize in Florida" -- Nashville Business Journal

Ten Florida hospitals owned by HCA Holdings Inc. (NYSE: HCA) have unionized, according to the National Nurses Union.

The agreement affects 3,100 registered nurses in the state at hospitals owned by Nashville, Tenn.-based HCA.

"Union cash floods states to combat Republican agendas" -- The Hill

Unions poured millions of dollars into state-level battles to beat back legislation that would limit labor’s political power.

Annual financial reports filed with the Labor Department by national and local unions show they gave nearly $16 million in contributions to more than a half-dozen umbrella groups, according to a review by The Hill.

"Conn. legislature backs construction labor bill" -- Bloomberg Businessweek

Connecticut lawmakers approved legislation Monday that allows government agencies to negotiate labor agreements on construction projects.

The House voted 109-37 to approve the measure, following Senate approval last week. It now goes to Gov. Dannel P. Malloy, who has promised to sign it.

Malloy emphasized parts of the legislation that give the state transportation commissioner more flexibility in directing how high construction and maintenance projects are contracted. The governor says the legislation will make Connecticut more competitive in applying for critical federal money.

After several years of deep disappointments, AFL-CIO President Richard Trumka said America’s largest labor organization is shifting away from blanket campaign spending on Democrats to target “friends,” including President Obama.

“We’re going to put together a permanent campaign structure,” Trumka said Sunday on C-SPAN’s Newsmakers. “I’d say there’s a couple of kind of candidates....there’s real friends, there’s acquaintances and there’s enemies. Acquaintances will probably get less and friends will probably get more help.”

"Flynn's NLRB lapses raise trust questions, chairman says" -- Worcester Telegram & Gazette

Two Democratic lawmakers urged Terence Flynn, a Republican on the National Labor Relations Board, to quit after fresh allegations of ethics violations that the agency’s chairman said raised questions “of trust.”

Flynn, while a board employee, gave non-public information including a draft of a board decision to a former member of the agency for personal gain, the inspector general said in a report released yesterday by Representative George Miller of California.

"Labor board takes side of Mardi Gras union organizers" -- Miami Herald

The National Labor Relations Board has stepped in on behalf of 10 workers fired from their jobs at Hallandale Beach’s Mardi Gras Casino, with the federal board accusing casino management of “unfair labor practices” that interfered with the workers’ federally protected right to form a union.

All 10 fired workers served on the casino’s union leadership committee and all 10 lost their jobs last November. The workers then took their case to the labor board, charging that Mardi Gras management responded to an employee union drive with open hostility — threatening employees with unspecified reprisals, promising a pay increase if the union push was abandoned and interrogating workers with suspected union sympathies.

"Raley's union to hold strike vote despite company's call for mediation" -- Chicago Tribune

Raley's workers are proceeding with a strike authorization vote, even though the company is seeking federal mediation to avert a strike.

In a tartly worded message on a union website, Jacques Loveall of the United Food and Commercial Workers said he'll be scheduling a strike vote "in response to your employer's erratic bargaining position."

There was no immediate word on when the vote would occur. Raley's cut off negotiations this week and threatened to submit to workers a "best and final" contract offer -- a move that could provoke a strike. At the last minute Thursday, the company decided instead to invite the UFCW to resume negotiations under the guidance of a federal mediator.

a) hearing officers have greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”;

b) hearing officers have the discretion to deny requests by parties to submit post-hearing briefs;

c) the parties no longer have the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election;

d) the 25-day period between the issuance of a decision and direction of election by a regional director and the holding of an election is eliminated;

e) a party’s ability to seek special permission to appeal a hearing officer ruling to the Board is clarified; and

f) the Board has the discretion to refuse to review a regional director’s resolution of post-election disputes.

In addition to the new rules, the Acting General Counsel for the NLRB recently issued a memorandum outlining the new election procedures as well as establishing new "best practices" not contemplated in the Board's new election rules. These new "best practices" are also designed to shorten the time between the filing of a petition and the election. As a result, elections can be held as soon as 18 to 24 days after the petition is filed -- potentially even sooner.

The new election rules were published on December 22, 2011, but Member Brian Hayes asserts that the Board's majority intentionally:

breach[ed] the Board's internal operating rule and, for the first time in the history of this agency, [did not] allow the requisite time for preparing or circulating a dissent.

On April 30, 2012, the NLRB finally published Hayes dissent, in which he states that:

It is my personal view, shared by many of the thousands of commenters to the [rule], that my colleagues' Rule contravenes the Act and the Constitution. In whole and in several parts, in substance and in the process used to adopt it, it also reflects arbitrary and capricious decisionmaking that requires invalidation on judicial review. Finally, as with recent adjudicatory actions, this rulemaking action represents an abdication of the Board's representation case duties and reflects a compulsive effort by my colleagues to favor union organization over all opposition, no matter its legitimacy or statutory protection.

In addition to Hayes' dissent, the NLRB's new election procedure has faced both legislative and legal challenges. Late last year, the House of Representatives passed John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094), which would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights. The Senate recently voted on a Resolution of Disapproval aimed at prohibiting the NLRB from implementing the new election rules. However, the Senate rejected the resolution by a vote of 54-45.

A lawsuit filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace is pending in federal court challenging the new election rules. They argue that the Board's new rules are invalid because:

• two Board members denied the third member the opportunity to fully participate in the rulemaking, thus denying the Board an official quorum;
• the actions taken to hasten adoption of the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow well-established Board practice; and
• the new rule is substantively inconsistent with Sections 3 and 9 of the National Labor Relations Act.

In February 2012, the parties filed cross motions for summary judgment, and the federal district court will issue its ruling on the merits by May 15, 2012. At least until then, the new rules remain in effect as the court has refused to issue a stay pending its ruling.

Employers must continue to monitor developments. In the event the new rules are upheld, employers will have considerably less time to talk to employees regarding the issue of union representation before an election once a union petition is filed.  Employers will need to assess and adjust perspectives, operational strategies and communications accordingly.

The inspector general for the National Labor Relations Board (NLRB) claims to have uncovered more evidence that a Republican member leaked confidential information.

Terence Flynn, a GOP member of the NLRB who was recess-appointed by President Obama in January, is accused of making additional disclosures of non-public information to Peter Schaumber, a former NLRB member. 

The supplemental inspector general (IG) report, dated April 30, alleges that Flynn released confidential information while serving as an agency chief counsel. The information that Flynn leaked, according to the IG, included four dissents and a draft of an NLRB decision.

"NLRB Issues Fifth Complaint Against Nursing Home Company" -- Hartford Courant

The National Labor Relations Board issued a complaint alleging that a New Jersey-based nursing home company that operates nine nursing homes in Connecticut — six of them unionized, "failed and refused to bargain in good faith" with the union representing caregivers.

The latest complaint is the NLRB's fifth alleging unlawful conduct by HealthBridge Management related to 15 months of contract negotiations with the Service Employees Union International District 1199, which represents 800 caregivers at the company's six unionized nursing homes.

"A unionization effort is underway at Peckham, a private nonprofit" -- City Pulse

When you first walk into the 190,000-square-foot Peckham facility near the Capital City Airport, you’d think you walked into a state-of-the-art liberal arts college. A giveaway to the fact that the building is a major producer of various military apparel is the 1,200 sewing machines on the production floor. 

Since March there has been a small, but growing, indirect war of words over who has the best interest at heart of the people working around those machines. 

The United Peckham Employees Association is a group of Peckham workers with help from labor activists — including the Lansing Workers’ Center and the International Association of Machinists and Aerospace Workers — that are trying to gain support for an independent union for the close to 1,100 disabled manufacturing workers.

"Pressure builds to drop union labor on Dulles Rail" -- Washington Examiner

The airports authority in charge of building the Metrorail line to Washington Dulles International Airport must drop its preference for union labor if the Silver Line is to become a reality, federal, state and local officials agreed Wednesday.

Officials turned up the pressure on the Metropolitan Washington Airports Authority to back down from its insistence that union labor be used at a meeting U.S. Transportation Secretary Ray LaHood organized with officials from MWAA, Virginia, Metro, and Fairfax and Loudoun counties.

Business organizations including the Virginia Chamber of Commerce and Virginia Retail Merchants Association said Monday they have formed a coalition to oppose several National Labor Relations Board regulations and proposals affecting labor union activities.

The coalition, calling itself the Alliance for Virginia Jobs, said it would ask all congressional candidates from Virginia to respond to a questionnaire asking whether they would support legislation to overturn or block the NLRB actions, such as a rule allowing for collective bargaining by smaller groups of employees at businesses.

"Judge sides with union in Peabody mine dispute" -- Bloomberg Businessweek

A federal judge has rejected a coal company's objections over a union election at a southern Illinois mine, ordering Peabody Energy Corp. to halt what he called unfair labor practices at the site and to rehire a worker fired over the dispute.

U.S. District Judge G. Patrick Murphy's injunction Monday at the United Mine Workers of America's request came four months after a National Labor Relations Board administrative law judge similarly ruled against St. Louis-based Peabody in the dispute over the union's 2011 organizing at the Willow Lake mine. The Saline County site is operated by Peabody subsidiary Big Ridge Inc.

"Black-car drivers vote to unionize" -- Crain's New York

In a move that could shift the balance of power in the city's black-car industry, drivers who work for Long Island City, Queens-based Town Car International voted Tuesday to unionize by a count of 125 to 62, union officials said.

The victory at one of the city's largest luxury car services is the first in what union leaders hope will be a series of wins that give more control over working conditions to the approximately 8,000 drivers who chauffeur the city's business executives.

"Obama tilts playing field in favor of labor unions" -- Columbus Dispatch

Labor unions, like the United Nations, are all too often judged by what they are envisioned as being — not by what they actually are or what they actually do.

Many people, who do not look beyond the vision or the rhetoric, still think of labor unions as protectors of working people from their employers. And union bosses still employ that kind of rhetoric. However, someone once said, “When I speak I put on a mask, but when I act I must take it off.”

That mask has been coming off, more and more, especially during the Obama administration, and what is revealed underneath is ugly, cynical and dangerous.

"Jimmy John's Workers Fight Year-Long Battle To Win Back Jobs" -- Huffington Post

Last March, Erik Forman was fired, along with five of his friends, from his job at a Jimmy John's sandwich shop in Minneapolis. A delivery man, Forman says he loved the work almost as much as he hated the company. More than a year later, he and his friends are still fighting to get back on the payroll and pick up their next shifts.

"For us, it's bigger than Jimmy John's, and it's bigger than our minimum wage jobs," Forman, 27, says. "We want go back there to do what we started to do."

What Forman and his friends had started to do was organize as a union with the Industrial Workers of the World (IWW), a labor group well to the left of most traditional American unions. With many of them working for around minimum wage, they felt the pay was too low and the benefits too skimpy. But Jimmy John's franchises, like virtually all fast-food restaurants in the U.S., are union-free. The IWW narrowly lost an election for representation at 10 Jimmy John's. Amidst a very public and ugly spat between employees and managers over the shops' sick-day policy, six workers were given their walking papers.

Lafe Solomon has done for the National Labor Relations Board what Tiger Woods did for golf (and later for a certain brand of marital infidelity): he got people to start paying attention. Since Solomon became the NLRB’s acting general counsel in 2010, his every move has caught the eye of the media, Congress, law firms, and both managers and workers at U.S. companies. Last week, Solomon discussed some of the agency’s latest hot topics at a program organized by Cornell University.

...

As the labor board’s top lawyer, Solomon has implemented contentious initiatives such as the requirement to post right-to-organize notices and the Horton decision, which found that class action waivers in arbitration agreements violate the National Labor Rights Act. He also made the highly criticized decision to issue an unfair labor practices complaint against the Boeing Company.

"NLRB Says Employer's Method for Opting Out of Arbitration Is Coercive" -- Law.com

Taking one more step in a campaign against mandatory arbitration agreements, the National Labor Relations Board filed a formal complaint against San Ramon-based 24 Hour Fitness on Monday, alleging the gym company's arbitration opt-out policy coerces employees to waive their rights to form classes and file suits against their employer.

Previously, the board had found that mandatory arbitration clauses violate federal labor law — a decision now on appeal.

Former 24 Hour employee Alton Sanders filed an unfair labor practice charge with the NLRB last year, alleging he was unfairly excluded from pursuing a race and sex discrimination class action against 24 Hour because of the company's policy on arbitrating employment disputes.

"Three unions move to unionize Revel's work force" -- Press of Atlantic City

Three major labor unions formed an alliance Monday to pressure the new $2.4 billion Revel resort into negotiating union contracts and warned of large-scale protests if those efforts fail.

Leaders of Teamsters Local 331, the United Auto Workers Region 9 and Local 54 of UNITE-HERE say they want to make sure Revel’s workers “have the benefits and protections of a union contract.”

“Revel wants to open a non-union casino in the midst of a union town and destroy the standard of living that generations of workers have walked picket lines and gone on strike to achieve,” said Bob McDevitt, president of Local 54. “That is unacceptable and impossible for us to ignore.”

"Caterpillar Labor Problems and Burdens of Success" -- 24/7 Wall St.

Caterpillar (NYSE: CAT) faces a relatively small strike at its Joliet, Ill., plant. The members of the International Association of Machinists and Aerospace Workers will walk out when their six-year contract expires. The strike shows the extent to which successful manufacturers can be the targets of labor problems, which is less likely than actions against recently crippled manufacturers are. General Motors (NYSE: GM) and Chrysler set deals with their unions with the leverage each had because of Chapter 11. The UAW and other unions received a stake in the future prospects of the corporations. Caterpillar and companies like Boeing (NYSE: BA) were never forced to offer attractive deals in exchange for substantial concessions. Now, labor wants a portion of the long-term upside of the companies, which have been consistently successful. Their images of success have been enhanced by their growth over the past several years.

The National Labor Relations Board's controversial new regulation aimed at streamlining the union election process is scheduled to go into effect on Monday after business groups failed over the weekend to secure a stay temporarily halting implemenation of the rule.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a bid for a temporary stay late Friday in a case challenging the rule as unconstitutional, but D.C. district judge James E. Boasberg denied the motion in an order entered Saturday.

The minute order states that the motion was denied because the court would rule on the merits of the case by May 15, before any election could take place under the new rule.

"Senator Rubio Introduces Bill Allowing Employers To Award Performance-Based Raises To Union Members" -- PoliticalNews.me

U.S. Senator Marco Rubio (R-FL) introduced the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, with Senators Jim DeMint (R-SC), Mike Lee (R-UT), and David Vitter (R-LA) as original co-sponsors. The RAISE Act would amend the National Labor Relations Board (NLRB) Act provision that blocked employers from giving deserving employees performance-based raises or bonuses. Under the current law, 8 million Americans who are union members have capped salaries.

"Looming May Day protests indicate Occupy movement escalation" -- Examiner

Organizers of the Occupy Wall Street movement plan nationwide May Day protests on Tuesday, May 1, 2012 in an escalation of the movement's activity.

A report at Bloomberg on Thursday indicates that the major Wall St. firms have already initiated heightened security and monitoring of the group's movements in anticipation of possible confrontations.

"Caterpillar workers reject latest contract proposal" -- The Herald-News

Caterpillar Inc. workers could go on strike this week after rejecting the company’s latest contract proposal on Sunday.

The strike could start as early as Tuesday depending on whether last-hour negotiations produce results.

The current contract expires at midnight Monday for 780 Caterpillar workers in Lodge 851 of the International Association of Machinists and Aerospace Workers.

The Acting General Counsel acknowledges in the memorandum that the Board's "final rule does not establish new timeframes for conducting hearings or elections," and further explains that: 

This memorandum does not set forth new time goals for the issuance of decisions or the conduct of elections. Regions should continue to process representation petitions and conduct elections as expeditiously as possible, consistent with our statutory mission.

Despite this acknowledgement, the Acting General Counsel takes steps to shorten the time for processing election petitions.

First, despite the fact that the current rules specify that hearings generally must be conducted within 14 days from the date of filing, the Acting General Counsel instructs all Regions to schedule the hearing to start seven (7) days after the petition is filed:

The revised rules adopted by the Board do not specify how soon the pre-election hearing should be held. Currently, most regions issue the Notice of Representation Hearing (NOH) on the day the petition is filed and schedule the initial hearing for 7 to 10 days after the petition is filed. In the interest of having uniform and predictable representation case processes throughout the field, I have adopted the practice of some regions to normally issue the NOH on the day the petition is filed, and schedule the hearing 7 days (or 5 working days) from the date of issuance of the NOH.

Parties can still request an extension of time not to exceed 14 days, absent extraordinary circumstances, from the date of filing of the petition. However, given the Acting General Counsel's and the Board's emphasis on eliminating "unnecessary delay," the Regions might feel compelled to increase their practice of imposing conditions on any grant of a postponement as set forth in the notice of hearing form (NLRB -4339). Specifically, Form NLRB-4339 states that an approval of a postponement may be conditioned on one or more of the following:

(1) The agreement of all parties to participate at a conference to be held at the regional office or, alternatively at the discretion of the regional director, a teleconference at least one full day before the rescheduled hearing date;

(2) Agreement by the requestor that if briefs are permitted, extensions of time for filing of briefs will not be sought or granted; and/or

(3) The requestor’s execution of stipulations on matters not in dispute, e.g., jurisdiction, labor organization status, appropriate unit.

Second, the Acting General Counsel now requires all Regions to advise all parties entitled to an Excelsior (voter eligibility) list that they have the right to waive the opportunity to have the list for 10 days before the election occurs. Accordingly, if a union wants to expedite the election, it can waive the 10 day period and have it set within a few days after the employer is required to produce the Excelsior list. Under such a scenario, an election could be held less than 20 days after the petition is filed.

Although a challenge to the Board's new election rules remains pending, absent any intervening action, the new rules will become effective on Monday, April 30, 2012.

"While these guidelines present challenges with regard to their implementation, they also provide opportunities for us to fully effectuate the policies and purposes of the Act, as they relate to the representation process."

For years Big Labor has been looking small, but it doesn’t feel that way now.

Unions won an Ohio referendum overturning Gov. John Kasich’s effort to restrict collective bargaining for government employees.

They built a recall campaign that could still knock Republican Scott Walker out of the governor’s mansion in Maple Bluff, Wisconsin.

And on Tuesday night, they knee-capped Rep. Jason Altmire in a Pennsylvania Democratic primary - getting payback for his vote against the president’s health care law.

Not bad for a movement that had been read its last rites.

"Striking American Red Cross workers conduct rally in Muskegon" -- Michigan Live

Carrying signs and yelling out chants, some American Red Cross workers who have been on strike for nearly a month hosted a rally and continued to walk the picket line Wednesday afternoon.

About 50 members of the Office and Professional Employees International Union Local 459 and Teamsters Local 580 were on hand in the first hour of the rally staged near the intersection of Third and Webster streets, adjacent to the American Red Cross Muskegon office and Hackley Park. The labor dispute involves workers in the blood collections division.

"Jimmy John's Franchise Owners to Appeal Ruling" -- KSTP.com

The company that owns several Minnesota Jimmy John’s stores is appealing a judge’s ruling that six former employees must be re-hired and paid back wages.

MikLin Enterprises Spokesperson Amy Rotenberg said the company plans to appeal the National Labor Relations Board judgment that came on Friday. The appeal has not yet been filed.

"US Airways: We'd Share Merger Synergies With Workers" -- The Street

US Airways (LCC) said it can afford to offer more to AMR (AAMRQ.PK) workers in a merger than AMR could as a standalone company because a merger would offer revenue and cost synergies.

"There's a tremendous amount of value created by merging US Airways and AMR," said US Airways President Scott Kirby, on the carrier's earnings conference call. "We can and should share with employees."